A recent Illinois court decision involving medical cannabis is a perfect example of the growing chasm between federal and state regulation. In the wake of U.S. Attorney General Jeff Sessions revoking the Cole Memorandum in early January, which poses new questions about whether the federal government will maintain a “hands-off” approach, an Illinois judge ordered on Jan. 16, 2018 that intractable pain be added as a qualifying condition for a patient to participate in Illinois’ medical cannabis program.

Citing medical journal reports on clinical studies showing the effective use of cannabis to treat pain, Cook County Circuit Judge Raymond Mitchell ordered the Illinois Department of Public Health to add the condition to its list of debilitating medical conditions in Illinois approved for medical cannabis treatment. The agency, which regulates Illinois’ Compassionate Use of Medical Cannabis Pilot Program Act, has stated its intent to appeal the decision and has 30 days to file it or the change goes into effect.

Interestingly, the patient in the underlying case requested treatment with medical marijuana in order to avoid using opioids to control pain associated with osteoarthritis, which runs directly afoul of the position of the U.S. Attorney General’s Office that cannabis use is part of the problem in the country’s opioid crisis. This latest move also aligns with a bill currently in the Illinois General Assembly that would allow patients prescribed opioids to instead use medical cannabis.

If intractable pain is ultimately added, it would be the 41st qualifying condition in Illinois and would only help to build momentum in the expansion of the state’s medical cannabis program, which is currently set to expire in July 2020. Many in the medical cannabis business in Illinois have expressed that the program as currently in place is not servicing or reaching all of the patients who could arguably benefit from the use of medical cannabis. With these types of court orders, the program has the opportunity to grow faster by enlarging the qualifying patient pool.

The developments in Illinois also show that Sessions’ revocation of the Cole Memorandum is not stopping the potential for the cannabis industry to continue its rapid expansion. However, the budget amendment protecting medical cannabis from federal enforcement intervention, more commonly known as the Rohrabacher-Blumenauer Amendment, is set to expire on Jan. 19, 2018 unless it is continued as part of the budget extension. Without the amendment, even state-sanctioned medical cannabis programs, like the one in Illinois, will have no shield against federal enforcement of the Controlled Substance Act.

If you or your company have any questions about the impact these actions may have on your business, please reach out to one of our cannabis industry team members. We have attorneys with experience working with the cannabis industry, federal enforcement actions, and the FDA who would be happy to assist you.

Diane Romza-Kutz is a partner whose practice focuses on the life sciences industry, including the representation of cannabis businesses and investors.

Thompson Coburn advises clients on state laws governing the business of cannabis to facilitate compliance with those state laws.
Federal laws concerning cannabis currently conflict with state laws in states that have legalized cannabis or possession of cannabis.
Although federal enforcement policy may at times defer to these states’ laws and not enforce conflicting federal laws,
interested businesses and individuals should be aware that compliance with state law in no way assures
compliance with federal law, and there is a risk that conflicting federal laws may be enforced in the future.
In addition to this Cannabis-specific note, readers should review Thompson Coburn’s Conditions of Use / Disclaimers page containing other important information.

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